Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07901489, Jonathan B. Conklin, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Levy, J. and Dawson, J.
Appellant Anthony Vargas contends the trial court abused its discretion when it denied his motion to dismiss a strike pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We conclude that the trial court was aware of its discretion, considered the factors relevant to the exercise of that discretion, and reached a decision that did not exceed the bounds of reason. Therefore, the judgment and sentence will be affirmed.
All further statutory references are to the Penal Code, unless indicated otherwise.
FACTS AND PROCEEDINGS
On May 1, 2007, appellant Anthony Vargas was charged by information with one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), one count of driving without a license (Veh. Code, § 12500, subd. (a)), and one infraction count of unlawful vehicle lighting (Veh. Code, § 24600, subd. (b)). The information alleged appellant had suffered a prior serious felony strike conviction under section 245, subdivision (a)(1) and had suffered a prior prison term for the conviction.
The charges arose out of an incident that occurred on February 19, 2007. A sheriff’s deputy stopped the vehicle appellant was driving because a taillight was not working. A consensual search of appellant uncovered a small black plastic bag that contained a white rock substance, later identified as 0.159 grams of methamphetamine. The deputy also learned through dispatch that appellant had a suspended driver’s license.
In May 2007, appellant pleaded not guilty and denied the allegations of the information.
On June 7, 2007, appellant pleaded no contest to possession of methamphetamine and driving without a license and admitted the strike and prior prison term allegations. In exchange for his plea, appellant was permitted to move for dismissal of the strike prior pursuant to section 1385.
On July 17, 2007, appellant moved to withdraw his no contest pleas. The trial court denied the motion.
On August 28, 2007, appellant appeared for judgment and sentence. Defense counsel requested the trial court strike appellant’s strike because (1) the “strike [wa]s approximately ten years old,” (2) the strike—assault with a deadly weapon—involved conduct that was relatively minor in that appellant threw a can at an individual in a supermarket, (3) the current offense was simple possession of a small amount of methamphetamine, and (4) appellant was not violent at the time of his arrest.
The deputy district attorney asserted appellant’s strike should not be struck and submitted based on the probation report. The trial court then stated the following:
“Thank you. The face of the plea agreement indicates that there are two potential outcomes[. I]f the Romero is denied, then the low term of 16 months, doubled for 32, is the contemplated sentence. [¶] If the Romero is granted, then the aggravated term of three years, plus a one-year prior for a total of 48 months would be the appropriate term.
“The Court recognizing the significance concerning the time credits; however, that would result in a four-month difference of actual time between the 24 and 28 months.
“The Court has read and considered the file in this case. [Appellant], the Court is confronted with prior convictions July of 2004, a 487; July of 2005, a 484; December of 2005, a 459. The Court won’t consider that, but in May, July, and December of 2006, three consecutive 148s.
“Pursuant to the discretion under Romero, 1385, the Court cannot find an appropriate period of crime free time to grant the Romero; however, the Court does find that the low term is appropriate; therefore, [the] Court orders [appellant] to serve 32 months—that is 16 months doubled—32 months in the California Department of Corrections; orders [appellant] to pay a $400 fine pursuant to … [section] 1202.4, and later .45, if parole is granted and revoked.”
The trial court also imposed a $50 lab fee and a $20 courtroom security fee. Appellant received time credits of 286 days based on 191 days of actual time and 95 days for good time or work time.
Appellant filed a timely notice of appeal.
DISCUSSION
I. Romero Motions and Abuse of Discretion
Section 1385 grants trial courts the discretion to dismiss a prior strike conviction if the dismissal is “in furtherance of justice.” (Id., subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In ruling whether to strike a prior felony conviction allegation “in furtherance of justice,” the trial court must “consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Appellate courts review a trial court’s denial of a motion to strike a prior conviction pursuant to section 1385 and Romero under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
An appellant establishes an abuse of discretion by demonstrating the trial court’s decision “was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of [the] prior convictions.” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the decision will not be disturbed on appeal. (Id. at p. 310.)
II. Analysis
A. Contentions of the Parties
Appellant’s contention that the trial court’s denial of his motion was arbitrary and capricious is based on assertions of fact about what the trial court did and did not consider. In particular, appellant asserts that the “trial court abused its discretion when it denied appellant’s Romero motion without considering all of the following factors in addition to appellant’s lengthy record: (1) his current felony conviction is for possession of a small amount, 0.159 grams, of methamphetamine [citation]; (2) if not for his 1997 strike prior, appellant would have been eligible for mandatory probation and drug treatment under Proposition 36 [citation]; (3) strike involved throwing a can of beer in a supermarket [citation]; and (4) no one required medical attention as a result of appellant’s can throwing incident. [Citation.]”
Respondent’s interpretation of the trial court’s decision is the opposite of appellant’s interpretation. Respondent contends that “[t]he record herein unquestionably shows that the trial court was well aware of its discretion under section 1385 and carefully considered relevant factors, including the fact that appellant had a substantial criminal record subsequent to his 1996 prior strike conviction for assault with a deadly weapon.”
B. Issues Presented by the Parties’ Contentions
First, when the parties disagree over the reasoning process that the trial court used in reaching its sentencing decision, how does an appellate court resolve that disagreement? Second, did the trial court’s reasoning contain an abuse of discretion?
C. Interpreting the Trial Court’s Decision
There is a strong presumption that any sentence that conforms to the sentencing norms set forth in the three strikes law is both rational and proper. (Carmony, supra, 33 Cal.4th at p. 378.) Under this presumption and the deferential abuse of discretion standard, appellate courts ordinarily indulge the further presumption that the trial court correctly applied the law. (Ibid.)
Under these principles, this court will review the trial court’s statements at the sentencing hearing and draw all reasonable inferences to support its decision.
1. Awareness of discretion
One type of abuse of discretion occurs when the trial court is not aware of its discretion. (Carmony, supra, 33 Cal.4th at p. 378.) In this case, the trial court explicitly referred to “the discretion under Romero, 1385 .…” Therefore, the record establishes that the trial court was aware of its discretionary power under section 1385 and Romero. Consequently, an abuse of discretion based on unawareness did not occur in this case.
2. Failure to balance relevant factors
Appellant contends that the trial court failed to consider certain factors. At the sentencing hearing, the trial court stated: “The Court has read and considered the file in this case.” The trial court made this statement after defense counsel had listed the factors that supported granting the Romero motion.
Based on the trial court’s statement and the argument it heard at the time of sentencing, we must reject appellant’s interpretation of the trial court’s reasoning process. We conclude that the trial court did not fail to consider or balance the factors deemed important by appellant. Instead, the trial court disagreed with appellant over the weight to assign those factors.
Essentially, appellant is asking this court to reweigh the evidence and substitute our judgment for that of the trial court. This we will not do. “Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.” (People v. Myers, supra, 69 Cal.App.4th at p. 310, quoted with approval in Carmony, supra, 33 Cal.4th at p. 378.)
In summary, appellant has not demonstrated that an abuse of discretion occurred. Therefore, the denial of the Romero motion will be upheld.
DISPOSITION
The judgment is affirmed.